Public Bill Committee

[Frank Cook in the Chair]
CR 04 Automobile Association (AA)

James Brokenshire: On a point of order, Mr. Cook. I welcome you to the Chair of the Committee. You will probably be aware that there is a ways and means resolution relating to the Bill scheduled for debate on the Floor of the House on Thursday. However, it appears that, if there were a statement on the Floor of the House, members of the Committee would not be able to take part in the discussion of the ways and means resolution. Have you received any representations on the timing of that debate, or any other aspect, in terms of the ability for members of the Committee to participate, given that the matter is directly relevant to the Bill? It seems strange that the debate is scheduled at potentially the same time as the Committee is sitting, with members of the Committee unable to participate in one or the other.

Frank Cook: I have had no notice of that, but I will do whatever is necessary to try to discover what the position is. I have to say, as one who has been here for 27 years, that that is not a novel situationit has happened on many occasions in the past. I will do whatever I can to discover the circumstances.

Clause 1

Records of searches

James Brokenshire: I beg to move amendment 1, in clause 1, page 1, line 6, at end insert
which may be made by electronic record or by the recording of a telecommunications message containing the relevant details..

Frank Cook: With this it will be convenient to discuss amendment 51, in clause 1, page 2, line 1, after vehicle,, insert
the stated name and address of the person searched,.
Amendment 52, in clause 1, page 2, line 9, leave out from as to perceived in line 10.

James Brokenshire: It is a pleasure to serve under your chairmanship, Mr. Cook. We have a number of matters to debate, some of which, I am sure, Her Majestys Opposition will scrutinise in a very productive and positive way. Certain provisions later in the Bill are likely to prove much more controversial, and we look forward to those important debates.
Clause 1 and amendment 1 deal with powers of stop- and-search. Government changes to the requirements on recording information from stops and searches reflect their understandable desire to reduce police bureaucracy in an appropriate way. That is part of the wider issue of the polices ability to get on with their job, with the elements of discretion and flexibility they need to protect our communities in an appropriate fashion. Clearly, the police cannot get on with that job if the Home Department is always breathing down their neck and if they are tied up with bureaucracy, paperwork and red tape that prevent them from actively carrying on with their duties. That is a concern in the light of the fact that the police spend more of their time filling in forms and doing paperwork than on the beat: just 14 per cent. of police officers time is spent on patrol compared with 22 per cent. of their time spent on paperwork.
The culture of bureaucracy that has grown up under this Government is clearly a big issue. It was interesting to note the evidence given to the Committee last week by Paul McKeever, the chairman of the Police Federation, who said:
If you look at police bureaucracy generally, there is an awful lot of it out there, and it would take an awful lot more than just dealing with stop-and-search to put it right.[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 13, Q30.]
However, we are dealing with stop-and-search specifically in clause 1. It is important that steps are taken to deal with some of the bureaucracythe form-filling requirements and the paperworkthat sits alongside powers of stop-and-search under the Police and Criminal Evidence Act 1984 and the associated regulatory burden. The Conservatives would go further than the Government propose. That is part of the reason for tabling the amendment. We also believe that the bureaucratic requirements and the paperwork relating to stop-and-account are too onerous and question whether they add a great deal in terms of police intelligence information, or the need for proper assessments on how the police utilise those powers.
There is a clear need for the police to have the right to stop and search someone for stolen or prohibited items if they have reasonable suspicion, which is what the powers under section 1 of PACE allow. Carrying out searches to identify whether people are carrying drugs or weapons in our community is clearly useful. It is certainly a significant power and is heavily utilised: in 2007-08, 1,035,438 people were stopped and searched under section 1 of PACE and connected powers under the Firearms Act 1968 and the Misuse of Drugs Act 1971. Thinking about the regulatory burden and the attached paperwork, we note that Sir Ronnie Flanagans interim report on policing suggested that the total recording and administration time for a stop-and-search form was 25 minutes. In that context, we also have to consider that about 11 per cent. of those stopped and searched are arrested as a result of the search. It is interesting to consider the important role that technology can play in recording information taken on stops-and-searches.
When I have patrolled with the police, it has been interesting to see the powers used in connection with drugs dogs, for example: if a drugs dog indicates that someone might be in possession of an illicit substance, obviously a stop-and-search should be conducted because that is reasonable suspicion. Therefore, on such operations, it is understandable that there is significant use of stop-and-search if grounds for reasonable suspicion have been identified. However, there needs to be clear trust and confidence on the part of the community in how the power is used.
Section 1 of PACE was, in part, a response to the Scarman report on the Brixton riots and, therefore, the need to retain trust and confidence in how the police use the powers, which are obviously potentially intrusive. Knife arches and other electronic scanners may have made them slightly less intrusive in terms of avoiding the necessity for a pat-down search, but such searches are still utilised and still needed, so there is a need for trust and confidence in how the police organise searches and how they utilise their powers. That feeds into how data are recorded and utilised. The practice of recording stop-and-account was developed after the Macpherson report into the killing of Stephen Lawrence, and there is a similar desire to give trust and confidence to the community on the levels of information recorded to ensure that those powers are used appropriately.
What is the appropriate level of reporting on stops-and-searches to provide that confidence and how can reporting be conducted so as not to impede operational police requirements unnecessarily? The balance is reflected in clause 1 and amendment 1. The concept is recognised in Sir Ronnie Flanagans report on policing and Jan Berrys review on reducing police bureaucracy. She gave evidence to the Committee last week and is the Governments police bureaucracy tsar. Information relating to stops-and-searches needs to be recorded, but the current process is simply too bureaucratic.
Amendment 1 would ensure that the information may be recorded by means other than written notificationthe completion of a form. In other words, it clearly and explicitly provides for the utilisation of technology. I am aware that the British Transport police, for example, are starting to use personal digital assistantsPDAsto record some of the information required for a stop-and-search. The relevant information can be recorded and retained by, for example, an officer radioing through the basic details of the search to create a digitally taped or transcribed police log at the centre with no forms. That would ensure that stops-and-searches would still be recorded but without the burden of having to fill in a form at the scene and a further form back at the police station.
The Flanagan review contemplated stop-and-search information being recorded in that way and amendment 1 provides the necessary level of flexibility to enable that to happen. Obviously the introduction of new Airwave technology across police forces makes that more readily achievable. We believe that that would be a practical means of ensuring that information is recorded. It would provide reassurance to communities and reduce bureaucracy, thereby freeing up officers time to remain in communities, to be proactive in their policing and to ensure that evidence is gathered in an appropriate way.
My right hon. and learned Friend the Member for Sleaford and North Hykeham made the case last week for modifying the information requirements as proposed in amendments 51 and 52. We will listen closely to the points he makes on those amendments. On the question of recording the identity of the person searched, I heard the Ministers statement last week that the information does not have to be provided by the person searched, which in part explains why it was felt that making the requirement mandatory might not be appropriate.

Douglas Hogg: My hon. Friend will see that the word stated appears before name and address in amendment 51. It would not be a mandatory requirement to supply it, but if it were supplied then it should be recorded.

James Brokenshire: My right hon. and learned Friend makes an important point. It was clear from what Jan Berry told the Committee that if information is given and if intelligence is provided to the police that may be relevant and useful, it should be retained in some way. Even if that amendment were not accepted by the Minister, I take it that that information would be recorded in some other way, such as a note in the police officers record. Jan Berry made a clear point when she said:
I would not want them to see the lack of requirement to record details as a reason not to collect intelligence.[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 5, Q9.]
It is a question of balancing the statutory requirements in the Bill and the amendments to PACE regarding the mandated requirements for the types of information to be recorded, against the need to ensure that relevant intelligence is protected. If there is information that a suspect was in a particular area at a particular time, that may be useful intelligence that could be captured. I suppose that how the police might seek to use that intelligence is a question of judgment and degree. It will be interesting to hear not only what my right hon. and learned Friend says in support of his amendments, but how the Minister of State envisages the intelligence being retained, which may not be specifically set down in the statute.
The Minister of State has made a number of claims about the time that will be saved by the proposals in the Bill. Any reduction in police bureaucracy is certainly extremely welcome, given the way that it has burgeoned over the past 12 years, but would the full extent of the time savings be realised if intelligence information were being collated in a different way? If the names that are given and perhaps other details are to be recorded, will that fully utilise the amount of time saved to which the right hon. Gentleman alluded last week? It would be useful to understand how he arrived at the calculation of the time saved. Did the calculation take account of the need to collect certain intelligence over and above the statutory requirements that may be set out in the Bill?
This will be a useful debate, putting into the frame the pressures and bureaucracy that the police have to deal with. As the Police Federation said, this is a small step. Clearly there is much further to go in dealing with the wider bureaucracy and paperwork that the police face.

Douglas Hogg: First, Mr. Cook, let me declare a personal interest, in that I am a criminal barrister practising in the criminal courts. Might I declare that now and not again? Secondly, it is a pleasure to serve under your chairmanship. You reminded me that we last appeared on a Committee together a long time ago, on the Firearms (Amendment) Bill in 1987. A further bit of background information is that I happened to be the Whip on the second Committee stage of the Bill that became the Police and Criminal Evidence Act, which this Bill amends in a number of respects. I recall that there were two considerations of that Bill by Committee; first David Mellor was the Whip on duty, and thereafter I was, taking the Bill through to enactment. I make that point by way of a preamble; it only suggests that I have been here a very long time.
Amendment 1, moved by my hon. Friend the Member for Hornchurch, makes a lot of good sense but it does not need to go in the Bill. It is about modalities, and I am in favour of not putting in the Bill a modality that may be overtaken in time by technology. However, he is clearly right in the substance of his suggestion: the police should, wherever possible, try to use modem technology to reduce the bureaucratic burden that they face.
My second point before I come to my two amendments is that I have served as a special constable on the beat in the metropolitan area. I was attached to Cannon Row police station in the mid 1970s, and patrolled around Trafalgar and Parliament squares and up to Waterloo place. Also, the Committee will appreciate that as a criminal barrister, I have been in many courts and seen many clients.
One has to be ware of the police. I believe that even today there is a certain amount of abuse, generally defined. As a special constable and as a junior barrister, I saw and became conscious of a lot of abuse. Therefore, when one says that one has to do away with bureaucracy, in one sense that is rightof course one must. But one must also keep in mind that the police are capable of abusing their power and not so relax the restrictions and constraints that abuse of power is not identifiable.
I always say in Committee and on the Floor of the House that when one gives power to the agents of the state, one has to recognise that inevitably, in time and on occasion, that power will be abused. Consequently, one gives away as little power as one reasonably can, and, when one gives it away, one hedges it about with restrictions and constraints, because we owe that duty to the citizen. Therefore, beware of bureaucracy of course, but remember too that the restrictions are often for the protection of the citizenincluding the young citizen. When I first entered Parliament in 1979-80, there was a tremendous continuing row about the Vagrancy Act 1824, which contained the old stop-and-search powers. It caused immense rows on the streets of London, especially among the ethnic minorities. We must be careful not to so relax the restrictions that real anxiety about the use of stop-and-search breaks out again among the ethnic minorities.
I have two brief points about my own amendments. Amendment 51 goes to name and address. I accept that there is no requirement, as a general proposition, for a citizen to furnish his name and address to a police officer who stops him in the street. There are circumstances when he has to, but generally speaking I believe there is no requirement. However, it is often desirable to find out the name and address, and there is nothing to stop a police officer saying, Excuse me sir, do you mind giving me your name and address? If the person gives it, there is merit in recording it. It is not a great burden to record it. Indeed, I noticed in the first evidence session that Mr. McKeever said that he had no particular problem with the suggestion.
Why does one need the information? Perhaps for intelligenceperhaps someone has given the wrong name and one subsequently checks it. It is quite interesting that he has given the wrong name. Why? What if he complains? An officer may know exactly with whom he is dealing. I see merit, if the name is volunteered, in recording itthat is no great shakes. If my hon. Friend the Member for Hornchurch is right about the method of recording it, down it goes through the radio communication and that is that. I would have the measure, on the sort of terms that I have suggested.
The other point, about ethnicity, is quite different. I worry about that, insofar as the Bill suggests that it is the officer stopping the person who is required to state that persons ethnic origins. New subsection (6A)(a) of section 3 of PACE refers to
the ethnic origins of the person as described by the person.
That clearly indicates to me that the constable says to the chap he has stopped, What is your ethnic origin? I would be chary about that. I walked the streets as a special constable and I do not think that that is a prudent question to ask. It is potentially confrontational. What happens if he replies, Human race.? The officer is not going to be very happy with that. There would be that kind of answer, let me tell you, Mr. Cook. That is certainly the sort of answer one might get from a lad on the street. What does one do then? Take it further? If the officer asks, What is your origin? the answer could be, What the hell has it got to do with you, officer? What does one say then? Or it could be, Lookmake up your own mind, officer. There are lots of variations. Why introduce a confrontational note? The truth is that when an officer stops somebody, he can make his own assessment as to ethnic origins and record it.
When I was standing at Trafalgar square as a special constable, there would often be a radio message up from Parliament, but it was not very praiseworthy. It was, RC3wheres the stop? RC3 in those days had a meaning, although I forget what it was. I was being told by a constable down in Parliament square that I might stop somebody coming up in a beaten old Vauxhall. An officer on the street can well identify ethnic origins and record them for him or herself, without there being any confrontation between that officer and the person stopped.

Tom Brake: Does the right hon. and learned Gentleman agree that there may be an inclination on the part of officers, if given the answer, I am a member of the human race, to fill in the form in the way that he wants them to?

Douglas Hogg: That is possible. I am a member of the human race is not a very informative reply, but it potentially causes aggro and confrontation. My last point, unless anyone else intervenes, is that we would be well advised not to put in the requirement for the constable to initiate the question; better to leave it to the constables perception and judgment.

Tom Brake: Amendment 1 has some merit. I will listen carefully to what the Minister says in response. We would probably all support the use of electronic means to log details, as a way of reducing the amount of time that officers spend on paperwork and the number of double entries required when manual records are taken and subsequently entered at a later date.

David Hanson: Welcome to the Chair, Mr. Cook, following your co-Chairman, Sir Nicholas. I wish you a successful time. You will be chairing for the majority of the week, and I look forward to it a great deal.
First, I say to the right hon. and learned Member for Sleaford and North Hykeham that I am sure that I would also have been on the Committee in 1987 with him and you, Mr. Cook, had I not failed to get elected in that years election in the constituency in which I currently reside. I would have loved to have served on that Committee and will certainly look at the PACE proceedings in Hansard when I have a quiet moment.
There is consensus on this Committee. We all wish to reduce police bureaucracy and to improve the use of technology to record what we need to record if we are to have the information we need. I genuinely offer the hand of friendship to the hon. Member for Hornchurch and say that the Government do not disagree with the Opposition on those issues. We need to look at whether our proposals in the Bill will meet those obligations and whether the amendments will help to improve the situation. That is what we are all jointly trying to achieve.
The hon. Gentleman will be aware that Jan Berry not only gave evidence to the Committee last week, but produced a report for the Government before Christmas, which we incorporated into the White Paper. There are some 39 recommendations to reduce bureaucracy; we have accepted 13 and are working on the others. We have also commissioned Jan to do a second years work, so we are trying to adopt a general direction of travel.
I hope that the amendment will be withdrawn, because it and amendments 51 and 52, tabled by the right hon. and learned Gentleman, would add to police work and to bureaucracy for officers on the front line. The existing requirement for the record of a stop-and-search to be made in writing does not preclude electronic records in any way, shape or form. Indeed, the PACE code of practice already provides guidance on the use of electronic records for stop and search, such as those made on BlackBerrys and PDAs, by forces that wish to use such technology. As of today, nine forces are recording relevant encounters through electronic means.
It would not be appropriate for a record to be made solely by means of a voice message, as it needs to be possible for individuals to be able to obtain a written record of the stop-and-search after the event. Technology is being explored that would turn voice messages into electronic or written records. That is not possible at present, but PACE would not preclude it, should we develop the technology further, as I hope we will. Only one force has looked into the practicality of voice messaging. I am not against that in principle and we will consider it in due course.

James Brokenshire: My question arises from Sir Ronnie Flanagans review, Jan Berrys recommendations on stop-and-account, and the guidance proposals that stop-and-account information should be retained and recorded via a radio message. How is that practice developing and how is it being utilised? There are some parallels with stop-and-search, and Sir Ronnie Flanagans report flagged it up as a future development.

David Hanson: We continue to work on that recommendation. Sir Ronnie Flanagans report was published in February 2008 and recommended using Airwave, the police radio system, to record stop-and-account encounters. Some 24 forces are using it at present, and as I said during my evidence to the Committee, we want to continue to develop that recommendation, not only through the Airwave system, but through other electronic technology.
There is no disagreement in the Committee about the desire to improve the use of technology to speed up the automatic collection of information. Indeed, I indicated during my evidence last Thursday that the Bill reduces the number of items to be recorded from 12 to seven. Of those seven items, three can already be automatically recorded by a number of forces, and all forces will be able to record them through Airwave when it is fully utilised in the near future. The date, time and place of the stop-and-search will therefore be recorded by automatic use of the Airwave system.
Included in the provisions of clause 1 are the four remaining items: ethnicity, object of search, grounds for search and identity of the officer carrying out the stop-and-search. There is certainly no disagreement between us. Mobile technological solutions using both Airwave and electronic devices are being explored further as part of our concerted effort to reduce the bureaucracy faced by front-line officers, and ultimately to improve the service to the public at largea concern that we all share.

Tom Brake: The Minister of State will recall that last Thursday he was not able to give the Committee details about the assumptions that were made in arriving at the figure of a saving of 200,000 hours each year. Is he now in a position to fill in Committee members on precisely what assumptions were made about the number of times that officers would perhaps capture the whole data because they felt that they were necessary for possible future investigations?

David Hanson: That question was also raised by other members of the Committee in the initial debate. I was going to refer to it later, but I might as well do so now. I hope the hon. Member for Carshalton and Wallington accepts that the figure is an assumption, which may be out or may be right. We have estimated that 12 minutes is saved by reducing the recording of the information. We have based that estimate on the savings that have been made on stop-and-account timings. We have assessed officer time at about 12 minutes per stop, and have multiplied that by the number of stops and searches conducted in 2007-08. It is not an exact science because there may be more or fewer searches this year than in 2007-08, but it gives us a simple mathematical conclusion of 200,000 hours. It is never an exact science; we can but try.
As has been mentioned, we have via the Home Office and the National Policing Improvement Agency invested £80 million in 32,000 mobile devices, bringing to almost 42,000 the number of such devices in operational use by the police. They are used to carry out checks on the police national computer and to send information back and forth. I wish to see that use of technology continued. I do not believe that the amendment tabled by the hon. Member for Hornchurch would add to where we are, because we are already travelling in that direction. Amending the Bill in that way would not change anything, and would potentially add to the time taken.
Amendment 51 would increase the recording requirements of the search, to include a persons stated name and address. I am repeating myself, in the sense that I said to the Committee last Thursday that there is no requirement for that at present, which was acknowledged by the right hon. and learned Member for Sleaford and North Hykeham in his contribution. However, there is a requirement to record a persons name if the constable knows it, and/or, if he so wishes, a description of the person. As the Committee discussed last week, it might be of value in some stop-and-search encounters if it were open to the officer to ask for the information and, if required by the circumstances, to record it. However, it is important to reflect on what Jan Berry said in her submission to the Committee last weekthat those matters are best left to the discretion of the officer involved. There is an option to record the information, but it is down to the discretion of the officer involved. Making that a requirement would ensure that we were not achieving what we were trying to do, which is to reduce the bureaucracy involved in having that information to hand. The discretion to record it is still there. Self-evidently, when a person is arrested and taken to a police station following a stop-and-search, their name and address will be established and recorded in the custody suite, as is normal practice.
Amendment 52 deals with the question of self-defined ethnicity. The amendment requires only the officer to record the self-defined ethnicity of the individual. We are not at this stage simply by chance. We are at this stage because recommendation 61 of the Macpherson report into the death of Stephen Lawrence requires the self-determined ethnicity of the individual to be recorded. If I accepted the amendment tabled by the right hon. and learned Member for Sleaford and North Hykeham, I would be moving away from a core recommendation of that report. I do not think that would be welcomed by the ethnic minority communities, or give them extra confidence in the police and how they operate.
It is already a requirement to record self-defined ethnicity. There is a code that a constable can use when a person refuses to state their ethnic origin. I wholeheartedly accept the many practical examples presented by the right hon. and learned Gentleman. I am sure that they will be common practice on the several days of the week and several months of the year when those things happen. I accept that entirely. In the event of that occurring, the officer can currently record the ethnic origin as not stated.

Douglas Hogg: I have some difficulty in seeing why an officer should ask that question. What is the merit in asking that question when one could look at the person stopped and form ones own judgment? Why ask the person who has been stopped to state what he or she thinks is their ethnic origin?

David Hanson: I go back to first principles. A persons ethnic perception is in the ownership of that individual. It is their judgment. If I was asked to describe myself, I would describe what I believe I am. It is not for someone else to make a judgment on my ethnic perception. We should remember that the Macpherson report is about confidence for black and minority ethnic communities. If I accepted the right hon. and learned Gentlemans proposition, I would undoubtedly face criticism, discussion, and a failure of confidence, from many people in ethnic communities, in policing in the wider world. We would have overturned a key recommendation of the Macpherson report on Stephen Lawrencethat the self-defined ethnicity of an individual is the key to defining their ethnic background.
There may be honest disagreement about that, and I can see that the right hon. and learned Gentleman does not agree with that proposition, but I will stick to the recommendations of the Macpherson report. The perception of the officer is not the crucial aspect; it is the perception of the individual who is stopped and searched. That ethnicity and ethnic background belongs to them, not to the officer.

Douglas Hogg: Clearly, there are merits in the police knowing, in general terms, the racial background of the people they stop, so that when they construct statistics they can say that of the people they stopped, x proportion came from the ethnic minorities. There may well be merit in that, and that flows from the officers perception of the ethnic origin. I do not see that the persons personal identification of his or her ethnic origins adds to that one jot.

David Hanson: It boils down to the determination of what an individual thinks they are, and what a police officer thinks they are. Let me just put one other point to the right hon. and learned Gentleman. Shortly, in the next eighteen months or so, a further census will be undertaken. We do not allow people to have what the police or the census officer believe is their ethnic

Douglas Hogg: They do not see them.

David Hanson: The point is that it is the individual who defines their ethnic background on the census form, because that is how they define themselves. I have fairly swarthy colouring; I could be defined as something that might not be the same as an officer might think.

Simon Burns: Like what?

David Hanson: I do not know, I am simply saying that I would define myself as one thing and an officer might define me as something else. The situation is down to an individuals self-definition.

Shona McIsaac: If it assists my right hon. Friend, my husband has been variously described by others as Pakistani, Iranian, Italian, Turkish and Spanish. In fact, he was born and brought up in Northern Ireland. That shows that peoples perceptions can be wide of the mark.

David Hanson: My hon. Friend makes a very fair point. The point I was making about myself is that I am British-born and British-bred but I suspect that somewhere downstream there might have been someone from the Spanish armada or a Roman soldier in my family to give me my colouring. A police officers judgment of the colour of an individualas my hon. Friend mentionedmight differ from the individuals perception of their ethnicity. Macphersons recommendation 61 is about self-definition of ethnicity and I wish to maintain that principle.

Tom Brake: I would like to go back to the point that I made to the right hon. and learned Member for Sleaford and North Hykeham. If an officer is given the response, I am a member of the human race, he might choose to enter the ethnic minority category he thinks appropriate. In practice, no one would be able to stop that officerapart from ensuring that he has trainingentering a definition that he has chosen himself.

David Hanson: The crucial point is that numbers recorded as a result of ethnic assessment by the officer or the individual in cases such as the hon. Gentleman mentioned, are reflected in statistics on the numbers of that particular ethnic group who are stopped and searched.
There is a danger of officers entering what they believe to be the ethnic origin of an individual. I would much rather have self-defined ethnic origins recorded as x number of white Caucasians, x number of Chinese, x number of Asians, x number of whatever people determine, and a percentage not stated. That could be anything from white to deepest black. I would rather have that, than an officer making a judgment that bumps up the calculations of an ethnic minority on those forms.
There is an honest disagreement. I always try to seek consensus in these matters and the Government will, as I am sure will the Opposition, continue to drive down bureaucracy and use electronic and new technology to improve the collection of information. However, I cannot accept the amendments and I hope they will not be pressed.

James Brokenshire: This has been a helpful and useful debate in setting out where the Government and police are in the use of technology to assist in the process of maintaining information and recording details where required. It was interesting that the Minister rightly alighted on Jan Berrys point about giving the police greater discretion. That is very important, not simply in this debate, but more generally in relation to police activities.
The Minister slightly glossed over Jan Berrys corollary point that if something was not prescribed, would it mean that intelligence was not gathered? I am not in favour of a box-ticking culture but because of the way in which process, form-filling and bureaucracy have become a day-to-day part of policing, there is a wider need to change the culture. That was perhaps what Jan Berrys comments addressedthe need for giving discretion but also for a cultural shift. She expressed concern that there should not, as a consequence of the change, be any loss or lack of intelligence as a result of the pervasive box-ticking mentality. Intelligence will still be required, where appropriate. The use of technology and the development of systems for recording information are important steps forward in day-to-day policing and in freeing up police time. It was helpful to hear what the Minister said about rolling out certain technologies and that speed can be adopted while preserving relevant information for those who wish to analyse the data obtained and providing those who have been searched with a proper record of the events and circumstances that transpired.
The issue of ethnicity is extremely important, particularly in the utilisation of stop-and-search powers by the police. We will come on to that in a later debate on changes to the Terrorism Act 2000 and the proportion of people from minority ethnic communities subject to those powers as contrasted with the rest of the population. I understand the Governments desire to ensure that information is recorded properly so that assurance can be given on how the powers are being used. We do not want to return to the days when it was almost felt that the police were unable to use certain powers, although they might have been needed or justified, because of concerns over community cohesion and how the use of the powers might be perceived. It is important that information on ethnicity is provided in relation to stops-and-searches.
I understand, on some levels, the points that the my right hon. and learned Friend the Member for Sleaford and North Hykeham makes about perception and how we get the most accurate information but, on balance, I agree that the approach taken, on self-determination by an individual as to how they wish their information to be recorded, is a fair one. However, I would not like to get to a situation in which trust and confidence are eroded so that no information is provided. It is obviously up to an individual whether they wish to respond to that question.
We have to be vigilant and continue to monitor how the powers are used and what proportion of minority ethnic communities are subject to such potentially intrusive powers as contrasted with other communities. However, in light of the Minister of States comments and this useful debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Douglas Hogg: I beg to move amendment 49, in clause 1, page 1, line 13, leave out , if that is not practicable,.

Frank Cook: With this it will be convenient to discuss the following: amendment 50, in clause 1, page 1, line 13, after second as, insert reasonably.
Amendment 64, in clause 4, page 7, line 25, after second as, insert reasonably.
Amendment 65, in clause 4, page 8, line 6, after second as, insert reasonably.
Amendment 66, in clause 4, page 8, line 27, after second as, insert reasonably.

Douglas Hogg: My purpose with the amendment is to relax slightly the requirement as to when the records in question have to be made. The Committee will appreciate that there is a distinction between practicable and reasonably practicable. Some things are practicable that are not reasonably practicable. For these purposes, we should not set the bar too high. May I give an example, not from police work, but from the experience of somebody who likes the countryside?
It is often practicable to cross a stream in spate but it is not necessarily reasonably practicable, because one may very well fall in and perhaps drown. I like going up mountains a lot, and it is often practicable to get to the top of a snow peak in a blizzard but that does not mean to say that it is reasonably practicable. One would be ill advised to do it, but one can do it. There is a difference in meaning between practicable, which means achievable, and reasonably practicable, which means reasonably achievable in the circumstances that one faces.
I do not want to create obligations that set the bar too high, because that may give rise to complaints. Although I wish to ensure that powers given to the police are properly restricted and constrained, I do not believe that the concept of reasonableness, in this context, is in any way prejudicial to the liberty of the citizen. My purpose is to set the bar a little lower than the Bill requires. I can imagine that, in the turmoil of police work, an officer would in some circumstances decide that the issue was not reasonably practical because of the other burdens upon him or her at that particular time, whereas the individual citizen might say that it was practicable. Let us not have the bar too high; that is the only purpose of the amendment.

James Brokenshire: I shall comment briefly on the amendments. As a learned legal practitioner, my right hon. and learned Friend has a good insight into the implications of getting the drafting and the detail right and how the relevant factors may be interpreted by the courts. The key issue is ensuring that the police have discretion in relation to the way in which information is recorded. If the conditions are not practicable and a contemporaneous record cannot be made due to operational circumstances, the police should have discretion to record the information as soon as is it is reasonable to do so after the event. The important thing is that the information is recorded correctly and appropriately. At the same time, however, the way in which the information is recorded should not fetter the operational requirements of the police. I agree with my right hon. and learned Friends view on the need to change the bar. The important thing is that there is sufficient operational flexibility in relation to the utilisation of the power so that we have the correct information while not fettering officers too much. Live and ongoing requirements should not be prejudiced, so the information may need to be recorded at a slightly later point.

David Hanson: I shall be short and to the point. My main concern about the right hon. and learned Gentlemans amendment boils down to the fact that, in the event of the officer not completing the stop-and-search form on the spot, as planned under clause 1, there is a danger that a later completion will lead to more errors, more inconsistency and, ultimately, more complaints to the police about the procedures. The amendment would increase the risk of incomplete or inaccurate records being submitted. We are also concerned that it would reduce the number of occasions on which an individual could receive the form at the time of the stop-and-search. The amendment would therefore lead to more difficulties for the police and would not be practical for either the person who is stopped and searched or the police. Ultimately, it would be of greater difficulty to the system as a whole, so I urge the right hon. and learned Gentleman to withdraw the amendment.

Douglas Hogg: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss the following: amendment 21, in clause 44, page 84, line 27, at end insert
(1A) Section [Stop and search power] extends to England and Wales and Scotland only..
New clause 1Stop and search power
(1) If a police officer of or above the rank of sergeant reasonably believes
(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or
(b) that
(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon, or
(c) that persons are carrying offensive weapons or dangerous instruments without good reason in any locality in his police area,
he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding
(a) six hours in the case of an officer of the rank of sergeant; and
(b) 24 hours in the case of an officer of the rank of inspector or above.
(2) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to
(a) the need to prevent injury or loss of life;
(b) offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation; and
(c) all relevant information giving rise to the belief of the relevant police officer described in subsection (1),
he may direct that the specified period during which the authorisation conferred under subsection (1) shall be extended to a period not exceeding a maximum of 48 hours.
(3) If a police officer gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.
(4) This section confers on any constable in uniform power
(a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;
(b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.
(5) A constable may, in the exercise of the powers conferred by subsection (4) above, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.
(6) If in the course of a search under this section a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it.
(7) A person who fails to stop, or to stop a vehicle when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both.
(8) Any authorisation under this section shall be given in writing signed by the officer giving it or, where that is not practicable, recorded in writing as soon as it is practicable to do so and shall specify the grounds on which it is given and the locality in which and the period during which the powers conferred by this section are exercisable; and any oral authorisation must be recorded in writing as soon as it is practicable to do so.
(9) The preceding provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police Force (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if the references to a locality in his police area were references to any locality in or in the vicinity of any police premises, or to the whole or any part of any such premises.
(10) Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement not later than the end of the period of 12 months from the day on which the vehicle was stopped.
(11) A person who is searched by a constable under this section shall be entitled to obtain a written statement that he was searched under the powers conferred by this section if he applies for such a statement not later than the end of the period of 12 months from the day on which he was searched.
(12) Where a constable has carried out a search in the exercise of the power under subsection (4) above he shall make a record of it in writing unless it is not practicable to do so in which case he shall make such written record as soon as practicable after the completion of the search.
(13) Section 60 of the Criminal Justice and Public Order Act 1994 is hereby repealed.
(14) In this section
British Transport Police Force means the constables appointed under section 53 of the British Transport Commission Act 1949;
dangerous instruments means instruments which have a blade or are sharply pointed;
locality means any place or area not exceeding one square mile which at the time of the authorisation under this section is given the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission or any other place to which people have ready access which is not a dwelling;
offensive weapon has the meaning given by section 1(9) of the Police and Criminal Evidence Act 1984 or, in relation to Scotland, section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 and includes, in the case of an incident of the kind mentioned in subsection (1)(b)(i) above, any article used in the incident to cause or threaten injury to any person or otherwise to intimidate; and
police premises, in relation to England and Wales, has the meaning given by the section 53(3) of the British Transport Commission Act 1949 and, in relation to Scotland, means those places where members of the British Transport Police Force have the powers, protection and privileges of a constable under section 53(4)(a) of that Act (as it relates to Scotland);
(15) For the purposes of this section, a person carries a dangerous instrument or an offensive weapon if he has it in his possession.
(16) The powers conferred by this section are in addition to, and not in derogation of, any power otherwise conferred..
New clause 2Amendments to Terrorism Act 2000
(1) The Terrorism Act 2000 is amended as follows.
(2) Sections 44, 45 and 46 of the Act are repealed..
New clause 4Authorisations under Terrorism Act 2000
(1) Section 44 of the Terrorism Act 2000 (authorisations) is amended as follows.
(2) In subsection (3), for may be given only if the person giving it considers it expedient for the prevention of acts of terrorism there is substituted must be given in writing and may be given only if
(a) an event is to be held in an area or place and the person giving it reasonably believes it is necessary to make the authorisation for the prevention of acts of terrorism in that specified area or place;
(b) because of the nature of a specific area or place the person giving it reasonably believes it is necessary to make the authorisation for the prevention of acts of terrorism in that specified area or place; or
(c) the person giving it is satisfied on the basis of specific information linked to an area or place that is reasonably necessary to make the authorisation for the prevention of acts of terrorism in that specified area or place.
(3) After subsection (3) there is inserted
(3A) An authorisation must specify an area or place that
(a) is no larger than is reasonably necessary to respond effectively to the threat of terrorism; and
(b) is no more than one square kilometre in total.
(4) In subsection (4)
(a) for the whole or part of a police area (wherever occurring) there is substituted in a police area;
(b) in paragraph (a), for a police officer for the area who is of at least the rank of assistant chief constable there is substituted the chief officer of police for that area;
(c) in paragraph (b), for a police officer for the district who is of at least the rank of commander there is substituted the Commissioner;
(d) in paragraph (c), for a police officer for the City who is of at least the rank of commander in the there is substituted the Commissioner of;
(e) in paragraph (d), for a member of the Police Service of Northern Ireland who is of at least the rank of assistant chief constable there is substituted the Chief Constable of the Police Service of Northern Ireland.
(5) In subsection (4A), for a member of the British Transport Police Force who is of at least the rank of assistant chief constable there is substituted the Chief Constable of the British Transport Police Force.
(6) In subsection (4B), for a member of the Ministry of Defence Police who is of at least the rank of assistant chief constable there is substituted the Chief Constable of the Ministry of Defence Police.
(7) In subsection (4BA), for a member of that Constabulary who is of at least the rank of assistant chief constable there is substituted the Chief Constable of that Constabulary.
(8) After subsection (4C) there is inserted
(4D) A person who makes an authorisation must publish, as soon as reasonably practicable and no later than seven days after an authorisation is given, a notice of the authorisation which describes the specified area or place..
(9) Subsection (5) is repealed (authorisation given orally to be confirmed in writing).
(10) In subsection (5A) there is inserted
authorisation means an authorisation made under this section or renewed by the Secretary of State under section 46;..
New clause 5Duration of authorisations under the Terrorism Act 2000
(1) Section 46 of the Terrorism Act 2000 (duration of authorisation) is amended as follows.
(2) In subsection (1), after under section 44 there is inserted or renewed by the Secretary of State under subsection (7).
(3) In subsection (1), in paragraph (b), for or at a time there is substituted and time.
(4) In subsection (2), for or time there is substituted and time.
(5) In subsection (2), for occur after the end of the period of 28 days beginning with the day on which the authorisation is given there is substituted be longer than is reasonably necessary to effectively respond to the threat of terrorism and must not exceed 24 hours.
(6) Subsections (4) and (5) are repealed.
(7) For subsection (7) there is substituted
(7) If an authorisation is given under section 44 in respect of an area or place, a further authorisation cannot take effect in respect of that area or place until after the end of seven days after the previous authorisation ceases to have effect unless renewed in writing by the Secretary of State.
(8) If the Secretary of State renews an authorisation under subsection (7) he or she must lay a copy of the renewed authorisation before both Houses of Parliament as soon as is reasonably practicable.
(9) If the Secretary of State renews an authorisation under subsection (7) on six or more occasions, he or she must, as soon as is reasonably practicable, lay before Parliament a statement explaining why the authorisation has been renewed..

James Brokenshire: A number of different issues are wrapped up in this clause stand part debate. So far, our discussions on stop-and-search have focused on levels of bureaucracy, the utilisation of the accurate recording of information, and the role of technology. However, there is also a need to focus on the implications of the clause for the effective use of stop-and-search more generally.
In her report on reducing police bureaucracy, Jan Berry said:
In too many places, police officers knowledge and understanding of their powers in respect of stops is poor. Yet there is clear evidence thatwhere knowledge and understanding is coupled with local intelligence and strong supervisionthe quality of stops increases.
It is important to reflect on that point. If we are seeking to re-codify the information that police officers are to record as part of their stops-and-searches, we should also look at how these powers can be used more intelligently and how police officers time can be focused and how we can achieve more effective utilisation of police time more generally. We should take a more focused look at the use of the power. Factors that might militate against this more effective, more intelligence-led use of stop-and-search powers include targets, as well as other bureaucracy and measurement devices.
Jan Berry highlighted that in her report at paragraph 5.103, which stated that
some forces continue to include the number of stops as personal performance indicators. Not only can this encourage unnecessary stops, but it also harms community relations.
She made a recommendation that such personal indicators for individual forces should be removed immediately because it created the perverse incentive to conduct more stops-and-searches than necessary. If we are looking at bureaucracy and the utilisation of time, actions undertaken simply to meet a given target would not appear to be an effective use of time.
What steps are the Government taking to implement Jan Berrys recommendation? What discussions have taken place with individual police forces? What assessment has the Home Office made of the number of police forces that may be applying some sort of target for the number of stops-and-searches that police officers conduct? Clearly it would not be an appropriate or effective way of targeting police resources on intelligence if they were simply tasked with conducting a fixed number of searches and their performance were assessed against that measure.
There is also the issue of Ministers confidence that the changes outlined in the Bill will be implemented on the ground. In other words, notwithstanding the target culture that may persist in certain forces at a local level, will individual police forces seek to adopt the measures that are contained in the Bill? It was interesting that in his speech to the police superintendents conference last September, which the Minister and I both attended, the Home Secretary stated:
Local requirements are often equally, if not more burdensome, and these need to be addressed too. To give one example, while the stop and account form has been abolished, I have heard of instances where neighbourhood police officers are still filling in the form even though its no longer required.
That related to stop-and-account, but what confidence does the Minister have that police forces will not simply choose to ignore the revised reporting requirements in the Bill, which gives the types of information that are to be recorded? What ifthe Home Secretary alluded to this at the police superintendents conferencepolice forces continue to record all the data sets that previously subsisted, even though the Bill, to free up police time and reduce bureaucracy, may prescribe that a reduced number of fields are to be recorded?
It would be interesting to hear the Ministers thoughts on how that measure might be rolled out, and to hear whether he accepts that a culture of bureaucracy and form-filling has grown up under this Government. What measures will the Minister introduce, alongside the proposals in the Bill, to bring about the cultural shift that apparently even the Home Secretary appears to accept will be needed?
Will the Minister confirm whether the details of any unlawful item found during a search will be recorded, notwithstanding the provisions in the Bill? That goes back to the issue of recording intelligence more generally. I accept what the Minister said about his best estimate, in relation to the 12 minutes that might be saved in the exercise of the powers set out in the Bill. Will there be an obligation in such circumstances to record such information about unlawful items in a suspects arrest record? In other words, if a search is conducted and an unlawful item is found, whether it be drugs or a weapon, and an arrest is made, presumably there would be a record of that unlawful item in the arrest record. I seek to understand clearly how all those aspects interrelate.

David Hanson: If it will save time, the answer is yes. Self-evidently, that item would be evidential in any future charge before the courts. Such a record would be madeat the police station, undoubtedly, rather than at the stop-and-search location.

James Brokenshire: I thank the Minister. The only reason for touching on that point is that it relates to the 12-minute saving that has been identified with regard to not recording certain fields. There is an issue about the analysis undertaken of that 12-minute figure. Obviously, some additional information for intelligence or arrest purposes might have to be recorded in a different way. The issue was whether that had been factored into the calculation of the 12-minute figure.

David Hanson: The 12 minutes relates to stop-and-search. That does not involve moving to the police station for an arrest or for a charge, so the stop-and-search is where the saving is made.

James Brokenshire: I am grateful to the Minister for that clarification on the bureaucracy saving and the assessment. I still have some questions on whether 12 minutes fully represents the savings, but I hear what he says and I do not intend to labour that point.
The clause requires the recording of ethnicity when a person has been stopped and searched. That is understandable for the reasons discussed in the previous debate, and I do not intend to go back over all those points, but there is the understandable issue of the disproportionate impact of stop-and-search on minority ethnic communities, with the impact particularly marked for black and Asian communities. Will the Minister say what the requirement in the Bill adds to the existing obligation in code A of PACE? There seems to be some overlap. Is additional information required? Has there been a change? My understanding is that there are already some requirements to record ethnicity in code A of PACE. Does this provision put a new requirement or duty on officers, or are we recodifying or adding to the Bill to give emphasis to what is already covered in the code?
The Minister will be aware of concerns about the use of stop-and-search on very young children. While there is no intention to introduce a formal requirement in the Bill, as I understand it, will the Minister give any indication on whether the issue is being monitored or reviewed? If so, what guidance is being provided to police officers? I recognise that, sadly, many very serious crimes are committed by very young children, so searches of children need to be conducted to assess whether they are carrying knives and other weapons or drugs.
Can the Minister tell us how many stops-and-searches of children there are? Concerns have been highlighted as to whether children are disproportionately affected, although that may be indicative of patterns of offending in an area. As concerns about very young children being stopped and searched have been highlighted, it would be helpful if the Minister responded to them and gave some indication of the use of stop-and-search in relation to young children.

Tom Brake: The hon. Gentleman makes a valid point. We want assurances that stop-and-search is not being applied arbitrarily to young people. What does he hope that the Minister will say in response to his query about monitoring and the frequency with which young people are stopped and searched?

James Brokenshire: Obviously, it is for the Minister to respond, but it would be helpful to get an indication of whether there has been any assessment of the targeting of stop-and-search. The reports on 10 and 11-year-olds have highlighted the most concern on whether the powers are being used proportionately. What discussions has the Minister had on the matter, what assessment has he made and what guidance exists on whether there are additional sensitivities or requirements that should be applied when a stop-and-search is being conducted of, particularly, very young children?
I turn to the amendment and new clauses in my name and the name of my hon. Friend the Member for Romford. Amendment 21 and new clause 1 relate, in essence, to a modification of the section 60 power in the Criminal Justice and Public Order Act 1994. Section 1 of PACE allows a police officer to stop and search a person in a public place for offensive weapons and other items. However, the power applies only where that police officer has a reasonable suspicion that he or she will find such unlawful items.
Under section 60, an officer of or above the rank of inspector has the right to authorise officers to stop and search people and vehicles within a specific locality for a period of up to 24 hours, if they reasonably believe that crimes of serious violence may occur or that someone is carrying an offensive weapon. That authorisation can be extended for a further 24 hours with the consent of an officer of superintendent rank or above. The power may be exercised without the requirement of reasonable suspicion that would be needed under PACE.
We have believed for some time that there is a need to change those powers. The utility of the powers is clear, especially when we consider the Metropolitan polices Operations Blunt and Blunt 2, and how section 60 powers have been used to prevent weapons being carried, to provide reassurance and to arrest those who are carrying knives and other weapons in their community, where there has been intelligence and reasonable suspicion that weapons were being carried in a locality. No one in the Committee can be in any doubt about the tragic implications of these issues, which have affected our constituents and many families around the country. A person who carries a knife or another weapon is at more risk of being the victim of a violent offence.
The issue is about using the powers intelligently. I recognise the concerns highlighted about section 60, and there is a desire, as Jan Berry said in her report, to ensure that the powers are used appropriately, sensibly, proportionately and on the basis of intelligence. It is important to reflect on whether there are ways in which the power could be brought closer to communities.
New clause 1 would create a right for officers of the full rank of sergeant to authorise stop-and-search of pedestrians and vehicles in a specific area for up to six hours, if they reasonably believed that incidents of serious violence might occur in that area, or that people were carrying guns, knives or other offensive weapons. That authorisation could be extended to a maximum of 48 hours by further direction of an officer of the rank of superintendent or above.
In some ways, the proposal intends to bring the section 60 authorisation closer to communities on the ground. Its intention is threefold: first, to provide a new preventive power to law enforcement to help to stamp out the possession of illegal weapons and prevent violent crime; secondly, to give police at the operational level greater flexibility to respond to intelligence and potentially fast-moving situations; and thirdly, to underline the importance of community policing, anchored by the police sergeant, and to help to develop confidence within neighbourhoods and areas served by local police teams.
We focus on police sergeants because they are often at the absolute core of community policing in the safer neighbourhood teams around the country. They are most likely to pick up the intelligence on the ground, to hear what is happening in the community and to need to provide community reassurance. The new clause would ensure that they were properly empowered by giving them a limited window of time in which to carry out stop-and-search in their locality. The change is practical, proportionate and common sense, and would help the police to combat violent crime in local communities.

Tom Brake: I know that the hon. Gentleman and possibly all other Members here will have been out on patrol with their safer neighbourhood teams, which are ably led by sergeants. When I have been on patrol with teams, sergeants have not suggested that they would like such a power at their fingertips. Has the hon. Gentleman received representations from sergeants about the power?

James Brokenshire: We have held our view on the modification of section 60 for some time, and when we were considering stop-and-search we discussed the matter with a number of police officers and with the Police Federation, which supported our proposals. That organisation speaks more generally for sergeants and police who are very much at that operational level. We believe that the measure would be useful and practical, and would strengthen the role of community policing on the ground, where the beat or neighbourhood sergeant has a key role. It is about ensuring that practical aspect, but it is also about strengthening and recognising the role that sergeants have at the core of their safer neighbourhood or community police teams, so that they are seen to respond quickly if information is given to them. It would make clear their status and position as the anchor at the centre of a community police team.
Certainly, sergeants are likely to have a closer connection to local issues and people because of the relationship between the community police and the community that they serve, and that should be recognised in the framework, constraints and protection of the existing stop-and-search power under section 60. Trust and greater confidence should be fostered in public police actions.
There should be an emphasis on being intelligence-led, recognising the points that Jan Berry made to the Committee about that, and about bureaucracy more generally. One way to provide greater linkage to the intelligence base would be to make the connection with the police sergeant being given the restricted power that we propose. That underlines the importance of community-based solutions as part of wider measures to tackle violent crime and social breakdown.
A six-hour authorisation for sergeants is therefore appropriate and proportionate. It would give greater assurance to the public with regard to the fight to stamp out illegal weapons on our streets, and in so doing, to reduce the scourge of violent crime that continues to claim far too many lives and blight far too many communities. The power is one part of an overall package of measures that it might be appropriate to use to address our understandable and significant concerns.
My next point relates to section 44 of the Terrorism Act 2000 and new clause 2. I emphasise that this is a probing provision and that I recognise the need for the police to retain the right to use stop-and-search as a means of preventing terrorism. The purpose of the new clause is to facilitate a debate on the issue, and my hon. Friends and I are very clear about that.

David Hanson: Does that mean that in the event that the hon. Gentleman and I swap positions in the next few months, the Conservative party would not repeal section 44 of the Terrorism Act?

James Brokenshire: Yes, we are clear that we would not repeal section 44. The new clause is a probing provision to facilitate a debate in the light of the European Court of Human Rights judgment. We seek to promote a debate and to hear what the Minister says about that important judgment, which I will come to in due course. As Lord Carlile said, there is a need for careful consideration of the stop-and-search powers under section 44, and I hope that the Committees proceedings, including this debate, will be the start of a move to address the concerns that have been identified following the Gillan and Quinton judgment, as well as other points that have arisen over the past few years. As I said, the purpose of the new clause is to facilitate a debate on the important issue of modifying the law in the light of the European Court of Human Rights judgment in the case of Gillan and Quinton against the United Kingdom, which was delivered just a couple of weeks ago.
There is little doubt about the continuing threat of international terrorism and there is no indication that it will diminish any time soon. Following the events of 2007, with the attempted terrorist attack in the Haymarket in London and the attack at Glasgow airport, there has been a marked increase in the use of section 44 powers. In 2008-09, 256,027 stops and searches were made under those powersa 36 per cent. increase since 2007-08. However, it is the way in which the power has been used, with whole police force areas designated as potential search areas, that has raised serious concerns.
In his last report to Parliament, Lord Carlile, the Governments own reviewer of terrorism legislation, was highly critical, noting that the use of section 44 had attracted particular criticism because it had a negative effect on good community relations; that its purpose and deployment were poorly understood; and that it was totally wrong that any person should be stopped to produce a racial balance, but that there was ample evidence that was happening. In that respect, he said:
It is also an invasion of the civil liberties of the person who has been stopped, simply to balance the statistics.
He noted that there was no need to use the power where existing stop-and-search powers were adequate and that the
figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable.
Lord Carlile therefore made some pretty significant criticisms of the use of section 44 in his last report to Parliament. That relates not only to the civil liberties arguments that he highlighted, but to the question of whether section 44 was being used inappropriately.
Putting aside the Courts judgment in the Gillan and Quinton case for a momentI am sure the Minister will tell us that the Government intend to appeal itwill the Minister tell us whether he shares Lord Carliles concerns and, if so, what practical measures the Government have taken, or intend to take, to address the points raised by Lord Carlile? Does he also agree with the statement of Assistant Commissioner John Yates in the paper he put to the Metropolitan Police Authority? Following consultation with community groups, he said that
the power is seen as controversial and has the potential to have a negative impact, particularly on minority communities.
The assistant commissioner recognised the sensitivities attached to the use of this power and, to be fair, I think the Minister does, too.
Although the Home Office has provided guidance on the use of section 44 stop-and-search powers in its circular 027/2008, will the Minister consider updating the guidance, reflecting the comments made by Lord Carlile and the Gillan and Quinton judgment? The circular notes that advice on the geographical extent of an authorisation is provided but suggests, for example, that the boundaries of the authorisation could be as wide as a divisional area or a borough boundary, and that this may be sufficient. Will the Minister give some guidance on whether he has taken a different approach with regard to the authorisation of section 44 powers since Lord Carliles comments, or since the case of Gillan and Quinton? There is a requirement under section 44 for the authorisation of the Secretary of State, which is something that the Minister in his role uses and fulfils daily. It would be helpful to hear in the Ministers response whether there has been any change in emphasis or approach, and whether any greater scrutiny, examination or review has taken place as a consequence of the recommendations and comments made by Lord Carlile and the judgment in Gillan and Quinton.
The judgment in that case has brought the issue even more to the fore. The Court noted:
The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics...There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.
Clearly, the way the powers have been used was a factor for the Court in reaching its judgment that section 44, as currently framed, was outside the convention rights. Has the Minister taken steps to analyse the claims and assessments that section 44 powers are being used to provide greater ethnic balance in their use across different communities? What steps are being taken to examine that claim, assess it further or deal with it?
The Court also concluded that
the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not therefore in accordance with the law and it follows that there has been a violation of Article 8 of the Convention.
That was the nubthe conclusion of the European Court of Human Rights in relation to section 44. The Government have said that they are examining options for a potential appeal against the judgment. Although an appeal is not certainas we heard from the Minister last weeklegal advice is being sought in relation to section 44. The Minister suggested during last weeks evidence session that the Court judgment was out of date, that its assessment was based on the historical use of section 44, that use had changed since the circumstances giving rise to the judgment and that the case in point related to events and circumstances in 2003.
It is certainly true that the Metropolitan police have adopted a new, three-layered tactical deployment model for using Terrorism Act powers, with section 44 powers focused on sites across London that are of
an iconic nature and/or key strategic importance.
Stops and searches in the Metropolitan police area during the first quarter of 2009-10 were down by 37 per cent. compared with the same quarter in 2008-09.
However, the judgment is specific that the Acts sections are not sufficiently circumscribed and do not provide sufficient safeguards. Therefore, according to my reading of the Courts judgment, along with the legal advice that has been provided to various Members and other inputs to the Committee, even if the practice may have changed, it does not address the specific points made by the Court. In other words, the focus was very much on section 44 as written in law, rather than the use of that power on a practical basis, although that may have informed the Courts judgment on whether the powers as drawn were sufficiently circumscribed to be within the ambit of the convention rights.
We believe that the Government should accept the Courts decision and start an urgent review and consultation process on appropriate changes to the provisions of the Terrorism Act to address the issues highlighted by the Court. There is clear uncertainty, and the period of that uncertainty should be minimised. In that context, I welcome Libertys contribution to the debate and its suggestions on authorisation requirements, duration, geographical extent and other proposed amendments to section 44. Libertys proposals are in large measure reflected in new clauses 4 and 5, tabled by the Liberal Democrats.
Those proposals require greater scrutiny and consideration to ensure that the powers are proportionate and circumscribed in relation to the operational requirements of the police, who need to ensure that we remain protected against the pervasive terrorist threat, which, sadly, we will continue to be subject to in this country for some time. I will listen carefully to the Ministers thoughts about why the Government feel that Libertys proposals are not appropriate, reasonable or in compliance with the European convention rights, and about why they think that the proposals may not work. In the light of the Court judgment, careful and sensible reflection is needed on the section 44 powers to ensure that they are suitably circumscribed.
It is important that there is urgent consultation with relevant stakeholders on all sidesthe police, security services, civil liberty groups and the community as a wholeto assess what changes are appropriate and proportionate, taking account of the need to strike the right balance between personal freedoms and public protection. It is clear that some change to the law is necessary. The Government should accept that and start the process of reform. Inaction will simply further erode confidence in this important tool and, in so doing, make us all that little bit more unsafe.

Tom Brake: I rise to speak briefly to new clause 1, tabled by the official Opposition. The hon. Member for Hornchurch has made a coherent case, as always, for giving additional powers to sergeants. However, it is also possible to make a coherent case against giving those additional powers. Judges have ruled that there is a risk of arbitrariness in relation to section 44.
The hon. Gentleman proposes to extend stop-and-search powers. Earlier, he rightly flagged up possible concerns about the use of stop-and-search as it relates to young people, and he posed a list of sensible questions for the Minister about the monitoring of that system. My concern is that without a review of stop-and-search that encompasses not only section 44 but goes wider, his proposals might lead to more rather than fewer concerns about the way stop-and-search operates. Again, I shall listen to what the Minister has to say, but at the moment I am agnostic about the proposal.
As the hon. Member for Hornchurch pointed out, Liberty has been keen to promote the proposals in new clauses 4 and 5, which were tabled by Liberal Democrat Members. When we debated the matter on Thursday I expressed concern that the Bill was not being used as an opportunity to deal with the section 44 issuethe clear risk identified by judges of arbitrariness in the deployment of those provisions. The new clauses would constrain, or at least contain more effectively, the stop-and-search powers currently deployed under section 44 of the Terrorism Act. I hope they would address the concerns identified in the ruling in question.
The Minister rightly pointed out that the area in which stop-and-search is being deployed has been reduced. It is not applied as widely as it was. Perhaps the problem that presents to the Minister is that it underlines the fact that the provision was previously applied in a blanket way, or a less contained way. Can he be entirely confident about how the section is being applied, even though the area of application is more restricted? It is still perhaps being applied more generously than required. The Minister has said that he considers each case individually, and I am sure that he does so very carefully, but so far he has not, I think, refused any applications.
The new clauses are intended to constrain and contain, and to define more precisely the area over which stop-and-search can be operated, as well as the length of time over which it can be applied. I hope the Minister will respond to them as sensible proposals. He may be able to deal with my concerns about the current arbitrariness, but he will have to work hard to convince me that the powers as they are now being applied are innocent of any degree of arbitrariness.
I hope the Minister accepts that the new clauses would enable section 44 to be applied more rigorously, and would address the issue of arbitrariness, which the Government will have to do at some point. They give the Minister an opportunity to deal with the issue in the Bill, rather than at a later date. Probably all hon. Membersand certainly all Opposition Membersaccept that it will have to be dealt with at some point in the near future.

Tony Baldry: From time to time I get a telephone call that goes something like this: Hi, Dad. What do you know about the Terrorism Act 2000? I say, Well, I probably voted for it. Why?  Well, Dad, Ive just been stopped yet again under the Terrorism Act.
My slight concern, in a debate on stop-and-search, applies particularly, I think, to the Metropolitan police. There is confusion about using the Terrorism Act to deal with terrorism or suspected terrorism and its use to deal with public order offences or public order matters. As Members of Parliament, all members of the Committee are, by definition, political activists and I suspect that there is not a single one of us who has not taken part in a demonstration during our political career. Even my hon. Friend the Member for West Chelmsford must at some stage have taken part in a demonstration.

Douglas Hogg: I took part in the Countryside Alliance march.

Tony Baldry: Indeed. My right hon. and learned Friend took part in the Countryside Alliance march. I demonstrated outside the Russian embassy complaining about the Russian invasion of Czechoslovakia. It is difficult to see why, for example, everyone at the climate change camp was stopped, searched and processed under the Terrorism Act. I shall give the Minister a presenta book published by my son and some others entitled Excessive Force. If the Terrorism Act is overused to deal with public order matters and policing demonstrations and protests, my first concern is that it is not a particularly effective use of that power and, secondly, that it alienates large numbers of young people, not just from the police but from the whole democratic and political process.
My hon. Friend the Member for Hornchurch has made a number of extremely good points. If one does not get stop-and-search under terrorism legislation into a proper sense of proportion, as opposed to stop-and-search under other legislation for other needs, it will lead to sloppy policing. The police will rely too heavily on terrorism legislation and use it as a sledgehammer when they should be using other legislation. It will also lead to alienation. We all rely on policing by consent, and all sections of the community should believe that they are policed properly and in a way that commands their support.

Douglas Hogg: I rise to support the general points made by my hon. Friend the Member for Banbury with whom I have worked many times, including at the Ministry of Agriculture, as it then was, but I shall also express some caution about new clause 1. I am always on the civil libertarian wing of any argument, because I am conscious of the degree to which powers are abused. I have said this before to the Committee and I fear that I shall say it again: we must be very careful about giving away powers and hedging them about with restrictions.
When I look at new clause 1, I have to ask whether we are showing the necessary degree of caution. Under subsection 5, a constable may stop any person or make any search
whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles.
In other words, you could be strolling down the road entirely innocently, Mr. Cook, as I am sure you would be, but the subsection gives the constable powers to search you. What is more, under subsection (7), should you not stop and obligealthough I am sure you wouldyou are committing an offence in respect of which you can be sent to prison.
Those are the effects of subsections (5) and (7). Who can give that extended power to search and stop, and in what circumstances? It is a police officer with the rank of sergeant. I do not intend to be rude about people, but that is not an elevated rank. Sergeant is an important rank, but it is not a senior officer. It is perfectly true that a sergeant could give that power only for a period of six hours, but should you be caught during that period, Mr. Cook, you would be pretty cross if you knew that the authority stemmed from a sergeant.
In what circumstances could a sergeant reasonably believe that a dangerous instrument was being carried? Come, come, what is a dangerous instrument? Someone who goes to the ironmonger to buy a carving knife or to John Lewis to buy a fork will, in theory, have a dangerous instrument. I tend to go to the Alps every year. When I come back, I will be carrying an ice axe and crampons, which are dangerous instruments. I do not like giving sergeants the power to say, Mr. Hogg has got himself a crampon and an ice axe. Those are dangerous instruments. I think its expedient to extend the powers of search. Well, that is not the kind of society I want to live in.

David Hanson: I will not labour the point, but I think there is general agreement that clause 1 will ultimately help to reduce bureaucracy. If the Committee and the other place agree to the clause, we intend to pilot changes with a representative number of forces for at least three months, and clause 45, which we will deal with later, makes provision for that. I hope that we will ultimately be able to agree that clause 1 should stand part of the Bill.
I accept the points that the hon. Member for Hornchurch made about the implementation of the stop-and-account form to date. He will be aware that we changed the stop-and-account requirements 12 months ago, and the number of stops made should not be used as a performance measure for individual officers. That change should be implemented in our 43 forces and in the British Transport police.
I am disappointed that not all our objectives have been met. We rely on implementation by chief officers, and implementation is very much supported by the Association of Chief Police Officers. However, I fully accept that delivery on the ground is lagging in some areas. I hope that the hon. Gentleman recognises that problem and shares our objective of solving it in due course.
ACPO is fully supportive of the measures before us. The pilot that we intend to carry out to implement the changes will look at the real-world impact and will wrap up the concerns about stop-and-account forms.
I should also tell the hon. Gentleman that the target we have set for increasing public confidence in policing reflects operational practice on issues such as the implementation in due course of clause 1, if it is approved, and the implementation to date of the changes to stop-and-account forms. I want us to reduce use and to agree quickly to abolish the stop-and-account form in practice as well as in theory. I hope that that reassures the hon. Gentleman.
The hon. Gentleman commented on the use of stop-and-search powers in relation to young people. I am afraid that I cannot give him any figures today to indicate exactly how often stop-and-search or stop-and-account powers have been used against people under 18, but they will be used for the simple reason that there are, sadly, people under 18 who carry knives or guns and who are involved in drugs. The police make, and will continue to make, operational judgments at a local level about whether to exercise their powers accordingly. Although we do not have the figures, these powers will remain a valuable tool to enable the police to secure protection for the community and sometimes for individuals under 18.

James Brokenshire: In some ways, I am not surprised by the Ministers response. There is concern about the utilisation of the powers, particularly where very young children are involved, which is the point I emphasised. Can the Minister give any indication of whether the Department provides guidance on stops and searches of very young people? Sadly, I recognise his point about the carrying of weapons. In some cases, gang members may use a younger child to carry a weapon on their behalf because the child is below the age of criminal responsibility. That is a serious issue that can be exploited by those with severe criminal intent. It would be helpful to hear the Ministers response.

David Hanson: Self-evidently, there are people under the age of 18 who may carry weapons or other equipment for use in criminal activity. That is precisely the reason why the stop-and-search power has to be used by police on an operational basis under both current andif the clause is acceptednew legislation. We cannot give the figures, but use of the power is judged locally and the police wish to continue to use it. I hope, therefore, that the Committee accepts the principle of the clause.
New clause 1 was tabled by the hon. Member for Hornchurch and would replace section 60 of the Criminal Justice and Public Order Act 1994, which enables an inspector or above to authorise the stop-and-search of persons or vehicles when there is a reasonable belief that incidents involving serious violence may, or have, occurred and it is expedient to give that authorisation. I cannot do better than endorse the comments of the right hon. and learned Member for Sleaford and North Hykeham. He explained that the reason why an inspector authorises section 60 searches is that we want to ensure that the public have confidence that the decision is taken at a senior level in the force. Moreover, with no disrespect to sergeants or to officers of lower rank, we want to ensure that the authorisation is not something that is done routinely, but requires senior-level endorsement.
My fear, which I hope the hon. Member for Hornchurch will reflect upon, is that new clause 1 could reduce public confidence in the use of searches and give rise to searches that will not receive the serious, high-level endorsement that the rank of inspector would give them. There is no evidence to date that the involvement of an inspector in authorising searches has given rise to slowness or to any criminality that would not have occurred anyway. That level of rank is not, according to the evidence, a bar to undertaking effective searches under section 60. Indeed, it is common practice for inspectors orally to approve their authorisationas do I sometimes on section 44 applicationsbefore later issuing a written confirmation. There may be concerns about the use of stops and searches, but diluting the authorisations and lowering the grade of the officer who can authorise them is not a productive suggestion. I hope the hon. Gentleman will reflect upon that, listen to the advice of his right hon. and learned Friend the Member for Sleaford and North Hykeham, and not press the new clause to a vote.

Tom Brake: Does the Minister, like me, think it appropriate that the hon. Member for Hornchurch should make some estimate of how many additional stops and searches might arise if the change was implemented?

David Hanson: The hon. Gentleman makes a valid point. The issue is about reducing bureaucracy and removing measures so that the police have more time for activities that are more productive for the public. We may well encourage further use of the powers if we devolve them to the front line. Current legislation ensures that someone has to justify a request to an inspector who then has to authorise it, so it is done at a senior level. The points made by the right hon. and learned Member for Sleaford and North Hykeham are therefore extremely valid.
There is a serious debate on section 44, and amendments have been tabled by both the official Opposition and the Liberal Democrats in relation to it. We need to address some of the concerns. Section 44 is an important tool that we have encouraged and used, and it provides a definitive, clear accountability line for the approval of stop-and-search powers, through Parliament and external scrutiny.
As Committee members know, any section 44 agreement must first be approved by a member of ACPOa senior officerand that approval must be applied to requests for such operational activity to be undertaken. Those requests are submitted and looked at by officials in the Home Office, through the Office for Security and Counter Terrorism, and reported to me. As I mentioned in my evidence to the Committee last week, I have to scrutinise an application and ultimately sanction it within 48 hours or it does not apply. That process is open to public scrutiny by Lord Carlile of Berriew, who undertakes regular scrutiny and is continually looking at the extent, usage and proportionality of the boundary. An appeal is currently being considered on a judgment made on the use of that power generally. All those things aside, there is real parliamentary and independent oversight on the use of section 44. Its proportionate use is justified as part of a deterrent for individuals who potentially could undertake terrorist activity in the United Kingdom.

James Brokenshire: The Minister mentioned the Governments reviewer of terrorism legislation, Lord Carlile. Following the Gillan and Quinton judgment, Lord Carlile gave an interview to the BBC, suggesting that a change to the law may be required and, reflecting on his previous comments, again expressed concern that section 44 was still used far too randomly without any reasoning. What response would the Minister give to the concerns expressed by Lord Carlile in the context of the latest judgment? There are some serious issues to consider.

David Hanson: There are indeed. The terror threat in the United Kingdom is currently rated severe: that threat level was raised by the independent Joint Terrorism Analysis Centre, which makes recommendations about the level of threat and Ministers have to respond to that. JTAC independently decided the threat level a week ago last Friday. There are serious issues to do with the terrorist threat, and the use of section 44 is part of our proportionate response to that.
Self-evidently, we are disappointed with the ECHR ruling in the Gillan case, which the hon. Member for Hornchurch mentioned. We won challenges in that regard in the UK courts, including in the House of Lords, and we have sought the referral of the case to the Grand Chamber for an appeal, on the basis that we believe that the provisions are proportionate.
Lord Carlile regularly raises a number of issues with the Government, on which we reflect and which, as has been shown, we have considered carefully over the past 12 months. The totals for section 44 power usage over the final quarter of 2009-08 show that there has been a 42 per cent. quarterly decrease in their use over the previous quarter. That does not get away from the fact that 256,000 people were stopped by the police under section 44 in 2008-09 in Great Britain, but it is still a decrease over time and the decrease is continuing. At the level of officials and the police, and including Lord Carlile and myself as Minister, we are continually ensuring that the use of that power is proportionate. I defend the use of that power to the nth degree, because it acts as a deterrent for potential terrorists, it can provide security to our communities and it proves a valuable tool for the police to help to prevent the type of atrocity that every Committee member would not wish to see in London or elsewhere.
The hon. Member for Banbury raised legitimate concerns about the experience of young Baldry. I look forward to receiving the present of the book, and I will find time on my three-hour train journey home to flick through its pages. I appreciate the way in which he expressed his view. Professional practice guidance entitled Practical Advice on Stop and Search in Relation to the Terrorism Act has been produced by the National Policing Improvement Agency. I have a copy of the guidance, which I understand is a public document, before me for ease of reference, and page 14 states:
Officers should always use objective criteria to select people for search. Criteria could be related to...The individual themselves; To the location the person is in; A combination of the two. Every person searched under section 44 should be told explicitly that they are not suspected of being a terrorist.
The searches that are undertaken are random. Operationally, police may make judgments and I will happily consider the experiences of the family of the hon. Member for Banbury. However, there is clear guidance throughout that document about how this power should be used. I commend those considerations to the Committee.

James Brokenshire: On the guidance, the Minister will note that I also referred to a Home Office document that sought to prescribe certain information on extent and utilisation of power. What are his thoughts on applications under section 44 that might specify, for example, an entire police force area as an area requiring authorisation to search? The Metropolitan police have moved away from that in their refocused objectives in relation to section 44, but clearly those applications might be coming before the Minister and it would be helpful to understand his reading of the guidance and whether he is looking more carefully at applications that have such a huge geographical coverage in relation to certain police force areas.

David Hanson: Without giving away too many secrets in a public place, very few whole-force applications come before me as Minister. Most of the applications are related to specific geographical areas or a location in a geographical area where a specific individual might be at a particular time. So I think that the whole-force approach is being reduced. The hon. Gentleman will know that we have taken a keen interest in the matter at an official level through Lord Carlile and myself, as Minister, to ensure that we reduce the number of whole-force applications. That has been shown to work in relation to the police themselves making fewer such applications, certainly over the past year and noticeably in the Metropolitan area.
Tom Brakerose

David Hanson: That neatly segues me into the amendments of the hon. Member for Carshalton and Wallington. I will give way to him before I proceed further.

Tom Brake: Before the Minister segues, without breaching confidences or referring to a specific case, can he explain in what circumstances a whole-force application is appropriate and in what way it is useful for the police to have a whole-force application in force?

David Hanson: Again, without giving away specific confidences, I cannot recall the last time I agreed a whole-force application. Such applications are now targeted around specific areas and locations that I do not need to go through, but that will be self-evident to hon. Members. Whole-force applications are restricted to a small number of forces, which have asked the Government via their senior officers for section 44 applications. There are a number of key areas where we have done that in specific forces, but many forces have not applied at all for a section 44 during the course of their consideration of these matters.
That leads me to the amendments tabled by the hon. Member for Carshalton and Wallington, which deal with two specific issues. First, limiting the geographical extent to a designated 1 km area would again be very difficult. Let me give a concrete and practical example. There could be a threat to a geographical area, such as the City of London. If we have a 1 km application, there may need to be searches in a range of areas outside the 1 km that covers, for example, the City of London. I can think of numerous examples where a wider stop-and-search would be necessary to be proportionate and to ensure that the objective is achieved. The objective is effectively not necessarily even to catch terrorists, although that might be a by-product, but to ensure that people who might be committing terrorist offences know that there is potentially an opportunity for them to be stopped. That is a deterrent. The way to stop terrorist activity ultimately is through intelligence-led activity and a range of other measures downstream, and the provision remains a valuable and important tool. In key areas around Westminster, central London, airports, military sites and so on, geographical restriction would cause severe difficulty for operational flexibility, and it would not be supported by the police or the Government.
Revised guidance has been issued, and there is guidance on how the power should be used. We will certainly reflect, as we must do ultimately, on the judgment of the European Court of Human Rights. We must consider whether we can appeal against it and, if we cannot or we lose, whether to amend the legislation at some future stage. At the moment, we must consider the operational capability of forces for my officials and I to make those judgments. The police must be aware that there is public concern about ensuring that we are not undertaking extraneous stops and searches.
If I accepted the amendment tabled by the hon. Member for Hornchurch, the power would stop tomorrow, and if I accepted the amendment tabled by the hon. Member for Carshalton and Wallington, I would restrict the power severely. I do not want to do either, because my objective is to ensure that people enjoy this great city and other iconic and important areas without the threat of being killed by random terrorist violence.

Tom Brake: In case the Minister was not intending to touch on new clause 5, and following his specific comment on the 1 sq km issue, will he comment on the new clause, which relates to the time over which section 44 may apply?

David Hanson: Indeed, I will. Reducing the duration of the authorisation from 28 days to 24 hours could be damaging. Counter-terrorism operations may continue beyond 24 hours. Ministerially, at official and police level, I might be signing 28 or 29 section 44 agreements in a month, instead of a fixed time. I do not believe that new clause 5 is practical. At the moment, I sign a reasonable number of section 44 agreements during a week. During that 28-day period, the police may have to undertake stops-and-searches around some ordinary, established, fixed sites. I need not go into details, but there are locations where people live and work, and locations with critical national infrastructure. When I sign a 28-day section 44 application for such areas, I am giving the police the power to undertake searches during that 28-day period. I do not want to have an application in my red box every night, much as I love getting it, for a section 44 agreement for the same location, which must be signed every day because it is a key, iconic location or an individual resides there. The amendment is not practical, and I ask the hon. Gentleman to withdraw it.

Tom Brake: Can the Minister say anything about the typical or average durationI know that there will not be a typical section 44 applicationfor which it applies? That might give hon. Members a better idea, if 24 hours is not appropriate, of another time frame that addresses what the Minister is saying about not having to deal repeatedly with section 44 issues?

David Hanson: I continually renew some section 44s at the end of every 28-day period because they are effectively permanent section 44 agreements, but under the legislation they must be renewed every 28 days. Again, they self-evidently involve areas or matters that need to be covered, but I do not want to go into detail because that needs to be done securely. I cannot accept that we should limit a section 44 to a specific period, because there are areas that the police advise me need regular monitoring and section 44 stops because they are iconic.

James Brokenshire: I think the Minister accepts that reasonable concerns have been highlighted. For example, there is concern about stopping and searching individualsknowing that that individual is not under suspicion of terrorism and that there is no likelihood or probability of anything being revealed by a stop-and-searchon the basis of trying to achieve a different ethnic balance in the number of stops-and-searches that are being undertaken. Indeed, some reports on the use of stop-and-search powers have been widely publicised; for example, stopping photographers from taking photographs and various other things. The Minister seemed to suggest that he may take further steps, or that further arrangements may be in place at a practical level, to try to address that with individual police forces. Did I understand him correctly, or is there some other step or action to which he was alluding?

David Hanson: We keep the use of section 44 under constant review. Any section 44 application that I receive has been authorised by the ACPO-level official. It will contain the usage of that section 44 agreement in previous months. That gives me some indication of how many stops-and-searches there have been.

James Brokenshire: It is not the number, but the way they have been used.

David Hanson: The stop-and-search application is very comprehensive under section 44. It gives me an awful lot of detail about a range of issues that I cannot go into in Committee, in the sort of open sitting that we have today. However, under that legislation, we discuss at official level with the police ministerial questions about the application and, ultimately, once it has been agreed, it receives external scrutiny from Lord Carlile. That external scrutiny is ultimately published, with his comments on both individual forces applications and general applications. In my view, therefore, there is scrutiny.
We are considering the current judgment, and looking to appeal against it. We will reflect on the outcome of that in due course and may well make changes accordingly in operation and/or in legislation, depending on that outcome. However, at the moment I am satisfied that there are sufficient scrutiny powers available to Ministers and externally to ensure that we do that in a positive way. Indeed, the Met police have worked with Lord Carlile since the last report in summer 2009 to change the practice around authorisations so that we do not have a patchwork system and we only authorise, as I have said, iconic sites, crowded places and particular events.
It is possible for a section 44 to be authorised for one day. I am not denying that that could be the case. There could be a section 44 agreement around an iconic event like the Notting Hill carnival. There could be a three-day section 44 agreement around the Labour party conference in Brighton because, self-evidently, that is a potential area of concern. However, that does not mean that we have to have that as a maximum and have to renew it every time. The application could be for a certain number of days. We just need to bear that in mind and remember that this is all done for a purpose, and the purpose is to ensure that we do not have terrorist activity. I therefore urge the Committee to accept the clause, and reject the amendments in the name of the Opposition Members.

Frank Cook: If a Member seeks the attention of the Chair, then indicate it clearly by standing.

James Brokenshire: With the leave of the Committee, I rise to respond briefly to the Minister. As I said from the outset, it is not my intention to press the new clause relating to section 44. The debate on the Terrorism Act 2000 has been helpful in obtaining further information on the Governments thinking on the response to the Gillan and Quinton judgment. However, there are issues about the application of the section 44 power. There will need to be careful reflection on that judgmentI believe that some changes to the law are an inevitable consequence of it. Therefore, rather than seeking to appeal, the Government should reflect on that to ensure that confidence and certainty are applied to the use of the section 44 powers.
It was also helpful to hear how the Minister of State intends to pilot the changes to the stop-and-search powers that have been identified in clause 1, and that he accepts both the problems that were identified in the implementation of the changes to stop-and-account some 12 months ago, and the problems that remain. That goes back to the cultural changes that I talked about earlier, and to how the burdensome bureaucracy under this Government will have an impact on making the changes needed to speed up police operations and reduce the effect of forms and recording requirements.
I have heard what the Minister of State and other members of the Committee have said on the modification to section 60 proposed in new clause 1. In response to the point made by the hon. Member for Carshalton and Wallington, the measure might reduce the number of searches by being more intelligence led, and focusing on the intelligence-based approach. It would push powers down to the community level and therefore be more responsive to the communitys needs, rather than adopting a blanket approach.
I have heard the strongly held views of my right hon. and learned Friend the Member for Sleaford and North Hykeham on certain aspects of the new clause and on police sergeants, but I do not share them. I imagine that he would have been party to the discussions on the Criminal Justice and Public Order Act 1994. Some of the provisions that he has mentioned are simply a mirror of those in that Act, which I presume he may have debated, considered or approved at that time.

Douglas Hogg: I may have voted for the provisions, but I certainly was not party to the discussions; I was then working in the Foreign Office.

James Brokenshire: I am pleased to hear of my right hon. and learned Friends work at that time in the Foreign OfficeI am sure that he was doing a sterling job. It is interesting, therefore, if his views on section 60 have changed since he voted at that time.
I have listened to the debate. We believe that the power proposed in new clause 1 could be a helpful addition. However, in the interests of promoting discussion on other areas, I will not seek to press the new clause to a vote.

Tom Brake: Clearly, I am disappointed that the Bill has not been used to address the arbitrary application of section 44, but I recognise that that was never going to be the case because the Government are considering an appeal against the European Court. I am sure that we will return to the content of new clauses 4 and 5 at some point, when the Government inevitably have to consider making changes to section 44.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Powers to take material in relation to offences

Douglas Hogg: I beg to move amendment 53, in clause 2, page 2, line 25, leave out before or.

Frank Cook: With this it will be convenient to discuss the following: amendment 56, in clause 2, page 3, line 25, leave out before or.
Amendment 57, in clause 2, page 4, line 10, leave out before or.
Amendment 60, in clause 3, page 5, line 10, leave out whether before or and insert and.
Amendment 61, in clause 3, page 5, line 13, leave out from Wales to end of line 14.
Amendment 62, in clause 3, page 6, line 7, leave out whether before or and insert and.
Amendment 63, in clause 3, page 6, line 10, leave out from Wales to end of line 11.

Douglas Hogg: My amendments fall into two groups. The first three propose the omission of the words before or, and the last four are directed at clause 3. I shall speak briefly on both clauses.
So far as the removal of before or is concerned in amendments 53, 56 and 57, I shall use as an example proposed new section (5A) in clause 2, which similarly applies to other provisions. It states:
The fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection).
I say, strike out before or. In other words, I want to disallow the provision that enables fingerprints to be taken in respect of matters that have occurred before the proposed new section comes into force. In the end, it is a matter of judgment. There is an element of retrospectivity in enabling the police to take fingerprints where the right to do so has arisen before the provision comes into force. I can see the pragmatic arguments for allowing that to happen, but I am rather against it because it involves some retrospectivity, and that is the justification for the removal of those two words by the amendment.
The other amendmentsamendments 60 to 63are more serious. Here we need to consider clause 3(1) and proposed new subsection (6D) of section 61 of PACE. In section 61, on fingerprinting, the following is to be inserted:
Subject to this section, the fingerprints of a person who is a United Kingdom national or resident may be taken without the appropriate consent if
Here we come to the bit that I object to. I will first indicate what I object to, and then I will indicate what I want to happen, which my amendments would bring about if they are voted for. What I object to is the following:
under the law in force in a country or territory outside England and Wales the person has been convicted of an offence under that law (whether before
I object to that
or after the coming into force of this subsection and whether or not he has been punished for it).
The new subsection continues:
the act constituting the offence would constitute a qualifying offence if done in England and Wales (whether or not it constituted such an offence when the person was convicted).
I pause there. Clause 3(1), to which I have objected, involves a degree of retrospectivity. The phrase in clause 3(1),
whether or not he has been punished for it,
means that the power to take fingerprints is attached to some pretty minor things. In addition, so far as proposed new subsection (5A)(b) of section 61 is concerned,
whether or not it constituted such an offence when the person was convicted
means, in fact, that a person could be convicted of an offence abroad and, notwithstanding the fact that such conduct was not at that time an offence under the law of England and Wales, the power to take fingerprints arises.
As I say, I always stand on the liberal wing of these arguments. I am in favour of civil rights; I do not like to see them being encroached on, although that sometimes puts me in a position contrary to that of my hon. Friends and others. I am against the powers of the police being extended in the ways that are proposed. I ask myself whether there is a good justification for this extension of police powers. Well, if I were a policeman, no doubt I would think that there was some justification, but I am not a policeman. I represent the citizen, and I do not want the power of the police, as against the power of the citizen, extended willy-nilly whenever the opportunity arises. I want to protect the citizen.
I am not being personal about the officials on the Treasury Bench; I assume that this measure is none of their responsibility. But I know full well that Government Departments will take every opportunity to extend the powers of the law enforcement agencies. People like us need to resist that continually and protest, saying, This is wrong.
That is why I am drawing attention to what I think are the defects in the Bill. I have no doubt that the Government will say, Oh, its only Mr. Hogg; hes trying to frustrate the natural desires of police to extend security, and all the rest of it. I jolly well am. I know full well that the police will always seek to extend their powers when they get the opportunity to do so. This is a Christmas tree Billwe know that. It has one or two important clauses, but the Home Office has come forward with lots of others that it has, no doubt, had in its back locker for a long time, and people like us ought to say, What is your justification? What is the protection offered? Why do you want to do this? Is the power retrospective? Does it infringe natural justice? If the answer to any of those questions is that we should not be introducing the power, we should not do so.

James Brokenshire: I rise in response to the understandably impassioned speech of my right hon. and learned Friend. I know what strong views he holds on the need to protect civil liberties. Perhaps there are distinctions that need to be drawn between the three different characteristics that are dealt with in clauses 2 and 3. They are the distinctions between arrest, charge and conviction

Frank Cook: Order. I am sure that the hon. Gentlemans enunciation and pronunciation are perfectly clear to everyone, but comments should be made through the Chair and, I suggest, that means to the Chair.

James Brokenshire: Thank you, Mr. Cook. I will certainly take your advice on that issue.
There is a need to focus on the three different aspects covered in the clauses: arrest, charge and conviction. The case for retrospection is clear where someone has been convicted of an offence. One criticism that we have made is that because of the previous blanket approach to taking DNA data and creating profiles, there has not been sufficient focus on achieving safety and security. Those are some of the debates that we will have in relation to various aspects of the Bill.
Looking at patterns of offending and persistent, prolific offenders, there are strong arguments that in not taking the DNA of a person who has been convicted of an offence, one is not following through on solving crime and bringing offenders to justice. One makes a distinction; we are subject to the rule of law, and we as a democracy and a Parliament take the view that if a person commits an offence, that creates a slightly different status for them in civil society, in terms of the way in which the law relates to them.
I hear the wider concerns about retrospection that might otherwise apply. I agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham that we need to be careful in the use of retrospection in legislation. For the purposes of preventing crime or bringing crimes to justice, it is accepted that there is a preventive effect in addressing crime by focusing on persons convicted of an offence, whether they are in prison or have been released.
My right hon. and learned Friend has a point in connection with persons who have merely been arrested; it would be beneficial to hear from the Minister about the application of retrospection to persons arrested. It seems odd that retrospection could be applied even if no charges were brought, and could apply even further back than it would do under other provisionseven including those contemplated by the Government in the Billunder which the DNA or sample retained at the time of the arrest is to be destroyed or disposed of. It is essential to get the interrelationship between the three categories right, so that there is clarity about how the relevant parts fit together, and so that we do not give an open-ended power, by virtue of retrospection, in relation to arrest. That is a legitimate and reasonable point made by my right hon. and learned Friend.

Douglas Hogg: My hon. Friend persuades me on the point arising from conviction. As I understand it, he broadly agrees with me about arrest. What does he say about charging? Where a chap has been charged, but not convicted, does he agree with the retrospectivity point that I have advanced?

James Brokenshire: My right hon. and learned Friend will see in further debates, and amendments that I have tabled, that there needs to be consideration of the timing. The matter should not be completely open-ended. If a charge has been brought and someone has been acquitted or the charges were dropped, it is legitimate to ask why the police should be able to take, in a broad swathe, the persons sample or fingerprints. We shall need to come back to that in a future debate.
The power needs to be properly circumscribed, and it does not appear to me from the clause that it is. Perhaps there are other provisions in the Police and Criminal Evidence Act 1984, which are not referred to because the Bill does not affect them, that might address the issue. However, I am not aware of any such provisions, and on my reading of the clause, that does not seem to be contemplated, even if one were to take the Governments approach to six-year retention of DNA profiles and the destruction of DNA material. The issue is the interrelationship of all the powers. It is important to get that right. We need to understand the intention behind the provisions, and what the ambit or extent is of the power that the Government intend to give the police for the taking of samples in this context.
The other important point made by my right hon. and learned Friend was about the interrelationship between what might be unlawful in this country and what might be unlawful in a different jurisdiction. He highlighted the question of whether retrospection might apply, and whether under the clause that would mean that an event that was unlawful overseas would, at that time, also have been unlawful in this country. That is a question of the drafting making the intention clear.
Some important points have been made, and my right hon. and learned Friends amendments are useful in teasing out some of the detail. There are still question marks about the drafting of the clauses, and it would be highly beneficial to hear from the Minister about their intention and scope.

David Hanson: I shall try to complete my remarks before 1 oclock, so that we can resolve the issue. It might surprise the right hon. and learned Member for Sleaford and North Hykeham to know that I, too, am on the side of the citizen, and that the clauses are framed as they are to ensure that we help to protect citizens through the collection of samples from individuals who are convicted.
The hon. Member for Hornchurch spoke about the amendments to clause 3amendments 60 and 61, I think. Basically, individuals who have serious convictions may well be in prison overseasor in Scotland or Northern Ireland. I think that there was acceptance in that, and I am pleased to hear it.
On clause 2, I should reassure the Committee that the extent to which the police will be able to take fingerprints and samples from people who were arrested in the past is limited. Either the person must still be on bail for the offence or, in relation to cases where the fingerprints or sample were inadequate, the police can require attendance at a police station for the purposes of taking biometric data only for six months after being informed of the inadequacy of the fingerprints or sample. That will, I hope, limit the extent to which the powers are used retrospectively. The provision is included so that the police will use the power only in limited circumstances following the commencement of the Bill, and that will, ultimately, not apply. Clause 3, however, is extremely valuable, and I ask the right hon. and learned Gentleman to withdraw the amendment.

Douglas Hogg: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment 2, in clause 2, page 2, line 31, at end insert
provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..

Frank Cook: With this it will be convenient to discuss the following: amendment 4, in clause 2, page 3, line 35, at end insert
provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..
Amendment 12, in clause 8, page 15, line 37, at end insert
provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..
Amendment 14, in clause 8, page 16, line 39, at end insert
provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..

James Brokenshire: I am conscious that we may well not conclude debate on the amendments this morning, and may need to return to them after lunch.
Amendment 2 again deals with powers to take material in relation to offences, and taking fingerprints after arrest. The fingerprinting provisions in clause 2, on page 2 of the Bill, appear to be quite open-ended in their ambit. I heard what the Minister said in his brief overview of the matter in the previous debate, but there are points requiring further examination.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.